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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Munishwar Nath Bhandari, N. Mala, JJ.
M. Satheesh Kumar – Petitioner
Versus
State of Tamil Nadu, rep. by its Secretary to Government, Personnel and Administrative Reforms Dept., & Others – Respondents
W.P.Nos.6201 of 2013; 1309, 11254, 11714, 20897, 23330, 28518 of 2021; 97, 734, 5098, 5105, 16631 and 22405 of 2022 & W.M.P.Nos.24607, 30137, 12471, 12472, 1455, 21112, 22164, 22165, 22166, 30138, 30139 of 2021, 5221, 89, 806, 91, 11836, 11915, 11917, 11920, 5213, 5216, 5222, 805, 15916, 21462 & 21463 of 2022
Decided On : 07-09-2022
CONSTITUTIONAL LAW - PUBLIC EMPLOYMENT - RESERVATION - WOMEN - HORIZONTAL RESERVATION - VERTICAL RESERVATION - ARRANGEMENT OF RESERVATION - INTERPRETATION OF SECTION 26 AND 27 OF THE TAMIL NADU GOVERNMENT SERVANTS (CONDITIONS OF SERVICE) ACT, 2016 - VALIDITY - SECTION 26(2) OF THE ACT OF 2016 - CONSTITUTIONALITY - ARTICLES 15(3), 16(2) AND 16(4) OF THE CONSTITUTION OF INDIA - APPLICABILITY - JUDGMENTS OF THE APEX COURT - APPLICATION - ARRANGEMENT OF RESERVATION FOR WOMEN - ILLUSTRATION - PROCEDURE TO BE FOLLOWED - DIRECTIONS.
Fact of the Case:
A batch of writ petitions were filed challenging the arrangement of reservation for women candidates in various selections conducted by the Tamil Nadu Public Service Commission (TNPSC). The petitioners contended that the respondents had given an erroneous interpretation of Sections 26 and 27 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 (the Act of 2016), resulting in vertical reservation for women candidates instead of horizontal reservation. The respondents, on the other hand, submitted that they had arranged the reservation in accordance with the provisions of the Act of 2016 and that there was no vertical reservation for women candidates.
Finding of the Court:
The court held that reservation for women candidates is horizontal, while social reservation is vertical. It is with a further arrangement that horizontal reservation cuts across the vertical reservation by applying interlocking reservation system. The difference between horizontal and vertical reservations could not be understood by the respondents while arranging reservation in favour of women candidates. By virtue of which, they en bloc set apart 30% of the vacancies for women and arranged it at the first stance as if they have to be given vertical reservation. Elaborate reference of the judgments on the issue was made by learned counsel for the petitioners and they would be referred while dealing with the rival submissions of the parties.
Issues: 1. Whether the arrangement of reservation for women candidates by the respondents was in accordance with the provisions of the Act of 2016 and the judgments of the Apex Court? 2. Whether there was vertical reservation for women candidates instead of horizontal reservation? 3. Whether Section 26(2) of the Act of 2016 was constitutionally valid?
Ratio Decidendi: 1. The court held that the reservation for women candidates is horizontal, while social reservation is vertical. It is with a further arrangement that horizontal reservation cuts across the vertical reservation by applying interlocking reservation system. 2. The court held that the respondents had given an erroneous interpretation of Sections 26 and 27 of the Act of 2016, resulting in vertical reservation for women candidates instead of horizontal reservation. 3. The court held that Section 26(2) of the Act of 2016 was constitutionally valid, provided it was interpreted to arrange reservation for women in the manner required and explained by the Apex Court in the judgments referred to.
Final Decision: The court directed the respondents to re-arrange the entire list of candidates as per the illustration given by the Apex Court in the case of Anil Kumar Gupta, supra. The respondents were directed to first arrange the candidates in the Open Category strictly in the order of merit, which would be 31% of the total vacancies for the selection in question. The list aforesaid would be arranged irrespective of the caste or the category, but going strictly by the merit, i.e., whoever has obtained more marks would find place in the first list. After preparing the first list of Open Category, the respondents would come out with the second list to provide social reservation to the reserved category vertically. While arranging reservation for the socially backward classes, the respondents would not take into account the number of candidates who find place in the first list of open category in order of their own merit, rather the vertical reservation would be from the candidates next in the queue in the order of merit of their own social reservation category, ignoring those candidates finding place in the first list of Open category. After arranging the second list for giving social reservation, the respondents would then provide horizontal reservation, which may be to female candidates, disabled person, etc. The horizontal reservation would be arranged after counting the women candidates finding place in the vertical list of her own category, for illustration a Scheduled Caste female candidate. For arranging horizontal reservation for Scheduled Caste women, a female candidate finding place in the list of Scheduled Caste would be counted towards their reservation and only in case of shortfall, they would be given benefit of female reservation in the manner illustrated by the Apex Court.
ORDER :
Munishwar Nath Bhandari, J.
(Prayer: W.P.No.6201 of 2013 filed under Article 226 of the Constitution of India praying for a writ of mandamus directing the third respondent Commission to implement the rule of reservation with regard to women in a horizontal manner by counting the number of women who are selected on their own merit for the purposes of satisfaction of reservation for women as explained by the Hon’ble Supreme Court in Rajesh Kumar Daria-s case reported in 2007 and consequently direct the third respondent to cancel the selection of the fourth respondent to the post of Deputy Collector at the counseling held on 14.02.2013 and consequently direct the respondents 1 to 3 to select and appoint the petitioner in her position with all consequential benefits. )
A batch of writ petitions has been filed to seek a direction on the respondents to implement the rule of reservation for women horizontally and not vertically.
2. The prayer aforesaid has been made by referring to the arrangement made by the Tamil Nadu Public Service Commission (TNPSC) so as the State while filling up various posts in the State service. The batch of writ petitions refers to different posts to which selections were made or are under process. We would be addressing the basic question raised by the petitioners on the application of the rule of reservation for women to all the selections to different posts in the State service.
3. For convenience, we would be referring the facts giving rise to the filing of W.P.No.6201 of 2013. The said writ petition pertains to a notification issued by the TNPSC on 29.12.2010, pursuant to which the selection was to be made after holding preliminary examination, followed by the main examination and, lastly, the oral interview.
4. The issue raised in the aforesaid writ petition is the arrangement of reservation for women candidates. It is after giving reference to Sections 26 and 27 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 [for brevity, “the Act of 2016”]. The provisions aforesaid stipulate that a minimum 30% of all the vacancies to be filled through direct recruitment shall be set apart for women candidates, irrespective of the fact whether the rule of reservation of appointment applies to the posts or not, and in respect of the posts to which the rule of reservation applies, 30% of vacancies shall be set apart for female candidates following the reservation for Scheduled Castes and Scheduled Tribes, Backward Class Muslims, Backward Classes, Most Backward Classes or Denotified communities and General Turn. The women candidates shall also be entitled to compete for the remaining 70% of vacancies along with male candidates.
5. While a challenge to the constitutional validity of Sections 26 and 27 of the Act of 2016 has also been made in few writ petitions, in other writ petitions a challenge is made qua the manner in which reservation has been arranged for female candidats.
6. Learned counsel for the petitioners submit that the respondents have given erroneous interpretation of Sections 26 and 27 of the Act of 2016 while arranging the reservation in favour of women candidates. By virtue of the interpretation given by them, women were given vertical reservation, while reservation for women is to be arranged horizontally. The interpretation given by the respondents has resulted in setting apart en bloc 30% of all the vacancies for women and thereafter to provide and arrange social reservation. Such provision not only offends Article 16(2) of the Constitution of India, but the judgment of a Constitution Bench of the Apex Court in the case of Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.
7. Learned counsel for the petitioners submit that it is now the settled law of the land that reservation for women is horizontal, while social reservation is vertical. It is with a further arrangem
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